Citation Nr: 0701331
Decision Date: 01/17/07 Archive Date: 01/25/07
DOCKET NO. 03-06 794 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for chronic obstructive
pulmonary disease.
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and Spouse
ATTORNEY FOR THE BOARD
T. Azizi-Barcelo, Associate Counsel
INTRODUCTION
The veteran, who is the appellant, served on active duty from
May 1973 to December 1974.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a July 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The veteran testified at a hearing before the undersigned
Veterans Law Judge in June 2004. The transcript of that
hearing is of record.
In September 2004, the Board remanded the case for additional
development. As the requested development has been
completed, no further action is necessary to comply with the
Board's remand directives. Stegall v. West, 11 Vet. App. 268
(1998).
In October 2005, the veteran submitted additional evidence in
support of his claims. The veteran has submitted a waiver,
in writing, to allow the Board to consider the additional
evidence and argument without initial RO consideration.
Therefore, the Board may proceed with the appeal. 38 C.F.R.
§ 20.1304(c).
In the documents received in October 2005 the veteran
submitted a statement that raises the issue of reopening a
previously disallowed claim of service connection for a right
thumb disability. This claim and the claim of service
connection for tinnitus are referred to the RO for
appropriate action.
FINDINGS OF FACT
1. Bilateral hearing loss is not shown by the medical
evidence to be the result of service.
2. Chronic obstructive pulmonary disease is not shown by the
medical evidence to be the result of service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38
C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2006).
2. Chronic obstructive pulmonary disease was not incurred in
or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West
2002); 38 C.F.R. § 3.303 (2006).
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide. Under 38 C.F.R. § 3.159, VA must
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 1) veteran
status; 2) existence of a disability; (3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability.
Dingess v. Nicholson, 19 Vet.App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The RO provided pre-adjudication VCAA notice by a letter
dated in June 2002. In the notice, the veteran was informed
of the type of evidence needed to substantiate the claims for
service connection, namely, evidence of an injury or disease
or event, causing an injury or disease, during service;
evidence of current disability; evidence of a relationship
between the current disability and the injury or disease or
event, causing an injury or disease, during service. The
veteran was also informed that VA would obtain service
records, VA records, and records of other Federal agencies,
and that he could submit other records not in the custody of
a Federal agency, such as private medical records, or with
his authorization VA would obtain any such records on his
behalf. He was also asked to submit evidence, which would
include that in his possession, in support of his claims.
As for content of the VCAA notice, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence); of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); of Pelegrini v. Principi,
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of
Dingess v. Nicholson, 19 Vet.App. 473 (notice of the elements
of the claim, except for the degree of disability
assignable).
To the extent that the VCAA notice did not include the degree
of disability assignable, since the claims are denied, no
disability ratings will be assigned, so there can be no
possibility of any prejudice to the veteran with respect to
any such defect in the VCAA notice required under Dingess at
19 Vet. App. 473.
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. The veteran was afforded VA
examinations. Additionally, the service medical records are
associated with the claims file, as are the identified and
available relevant post-service medical records. The Board
finds that the RO has obtained all identified evidence to the
extent possible. As there is no indication of the existence
of additional evidence to substantiate the claim, no further
assistance to the veteran is required to comply with the duty
to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Principles of Service Connection
Service connection may be granted for a disability resulting
from an injury or disease incurred or aggravated in active
military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Continuous service for 90 days or more during a period of
war, or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as hearing
loss to a degree of 10 percent within one year from the date
of termination of such service, establishes a rebuttable
presumption that the disease was incurred in service. 38
U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
For the purpose of VA disability compensation, impaired
hearing shall be considered a disability when the auditory
thresholds in any of the frequencies of 500, 1,000, 2,000,
3,000, and 4,000 Hz are 40 decibels or greater; the
thresholds for at least three of these frequencies are 26
decibels or greater; or when speech recognition scores are 94
percent or less. 38 C.F.R. § 3.385.
Factual Background
The service medical records contain audiometric testing on
entrance and separation examinations. Hearing impairment
under 38 C.F.R. § 3.385 was not shown as the test findings
did not shown a loss of 40 decibels or greater at any one of
the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz, or
at least three frequencies were the decibel loss was 26 or
greater. Speech recognition scores were not recorded. 38
C.F.R. § 3.385.
The service medical records show that in June 1973 the
veteran was treated for an acute upper respiratory infection.
In March 1974 after working in a boiler the veteran was
treated for inhalation of sooty air. It was noted that he
had been wearing a surgical mask and goggles. On separation
examination, there was no finding of a pulmonary abnormality.
After service on VA examination in May 1985, hearing loss was
not noted and the lungs were evaluated as clinically normal.
Employee medical records, beginning in April 1998, show
bilateral hearing loss that met the standard of hearing
disability under 38 C.F.R. § 3.385 for the purpose of VA
disability compensation. The pertinent findings for puretone
thresholds in HERTZ at the tested frequencies of 500, 1000,
2000, 3000, and 4000 in the RIGHT ear were 5, 15, 40, 50, and
40 decibels, respectively, and for the LEFT ear were 15, 25,
45, 45, and 40, decibels, respectively.
In October 2004, a private physician reported that the
veteran gave a history of loud noise exposure during service
and that the veteran had sensorineural hearing loss. The
physician expressed the opinion that at least a component of
the hearing loss was from noise exposure.
Private medical records, dated in September 2001, disclose a
diagnosis of chronic obstructive pulmonary disease.
VA records, dated from 2002 to 2004, disclose a history of
chronic obstructive pulmonary disease and the veteran was
advised to quit smoking. In 2003, the veteran was given
hearing aids.
On VA audiological examination in December 2004, the veteran
provided a history of noise exposure in the form of
evaporators and other equipment in the boiler room while in
service. He denied exposure to occupational noise following
discharge from service. Puretone thresholds in HERTZ at the
tested frequencies of 500, 1000, 2000, 3000, and 4000 in the
RIGHT ear were 20, 30, 60, 60, and 60 decibels, respectively,
and in the LEFT ear were 20, 30, 60, 55, and 55 decibels,
respectively. The diagnosis was sensorineural hearing loss,
bilaterally. The examiner expressed the opinion that the
fact that the veteran's induction and separation audiogram
results showed that he tested within normal limits, it was
less likely as not that his current hearing loss was a result
of military noise exposure.
On VA examination for respiratory diseases in December 2004,
the veteran reported a history of working in the ship's
boiler room while in service without the use of protective
gear, as well as, a history of smoking 1 pack of cigarettes
daily for 30 years. Following a review of the case file, the
examiner indicated that in March 1974, the veteran had
suffered a minor acute nasal irritation secondary to
inhalation of soot. The examiner found no evidence of
recurrence of this injury since service. The examiner
determined that the veteran's chronic obstructive pulmonary
disease was most likely due to his chronic tobacco use
disorder, which had created an obstructive ventilatory
impairment, rather than to exposure to soot in the military.
Bilateral Hearing Loss
Hearing impairment for the purpose of VA disability
compensation under 38 C.F.R. § 3.385 was not shown during
service. After service, hearing loss that met the standard
of hearing disability under 38 C.F.R. § 3.385 was first
documented in April 1998, twenty-four years after service,
and well beyond the one-year period for presumptive service
connection under 38 C.F.R. §§ 3.307 and 3.309. Also, the
absence of documented complaints of hearing problems from
1974 to 1998 weighs against the claim that hearing loss,
first documented in 1998, is related to service. 38 C.F.R.
§ 3.303(b); Maxon v. West, 12 Vet. App. 453, 459 (1999),
affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000) (It was proper to consider the veteran's entire
medical history, including a lengthy period of absence of
complaints.).
And after a review of the record, a VA examiner expressed the
opinion that the veteran's bilateral hearing loss was not
related to service on the basis of the results of entrance
and separation examinations that showed no hearing
disability. The Board finds the VA examiner's opinion more
probative than the opinion of a private physician, who
expressed the opinion that at least a component of the
hearing loss was from noise exposure, because the opinion was
not based on a review of the record and does not account for
the facts of record, that are, no finding of hearing
disability during service and the absence of documented
complaints of hearing problems for 24 years after service.
As for the veteran's statements and testimony that his
bilateral hearing loss was caused by excessive noise exposure
during service, the veteran as a layperson is not competent
to offer an opinion on a medical diagnosis or medical
causation, and
consequently his statements and testimony to the extent that
his bilateral hearing loss is related to service does not
constitute medical evidence. Grottveit v. Brown, 5 Vet.App.
91, 93 (1993).
As the Board may consider only independent medical evidence
to support its findings and as the Board has rejected the one
medical opinion that was favorable to the claim, the
preponderance of evidence is against the claim and service
connection for bilateral hearing loss is not established.
38 U.S.C.A. § 5107(b).
Chronic Obstructive Pulmonary Disease
The service medical records show that in March 1974 the
veteran was treated for inhalation of sooty air, and there
was no finding of a pulmonary abnormality on separation
examination. After service, chronic obstructive pulmonary
disease was first documented in 2001, more than 25 years
after service. The absence of documented complaints
indicative of chronic obstructive pulmonary disease from 1974
to 2001 weighs against the claim that chronic pulmonary
obstructive disease, first documented in 2001, is related to
service on the basis of continuity of symptomatology.
38 C.F.R. § 3.303(b).
Also, following a review of the file, the examiner, who
conducted the VA examination, concluded that the veteran's
chronic obstructive pulmonary disease was most likely due to
tobacco use and not to his exposure to soot in the military.
The examiner explained that the event in March 1974 in
service was an acute and isolated incident. This evidence is
uncontroverted and weighs against the claim.
As for the veteran's statements and testimony that chronic
obstructive pulmonary disease is service related, the veteran
as a layperson is not competent to offer an opinion on a
medical diagnosis or medical causation, and consequently his
statements and testimony to the extent that he relates
chronic obstructive pulmonary disease to service does not
constitute medical evidence.
As the Board may consider only independent medical evidence
to support its findings and as the preponderance of evidence
is against the claim, service connection for chronic
obstructive pulmonary disease is not established.
38 U.S.C.A. § 5107(b).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for chronic obstructive pulmonary disease
is denied.
____________________________________________
GEORGE E. GUIDO JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs